P.H. Shajahan vs Rajeendran

Sathish Ninan, J

This appeal is by the plaintiff in a suit for specific performance of an agreement for sale. The suit was dismissed by the trial court.

Ext.A1 agreement dated 25.6.1994 was executed between the plaintiff and defendants 1 and 3. The property belonged to defendants 1 to 3. Since the second defendant was not available at the time of execution of Ext.A1, defendants 1 and 3 executed the same on behalf of the second defendant also. An amount of ₹ 25,000/-was paid as advance sale consideration. The period fixed for performance was 30.11.1994. Though the plaintiff approached defendants 1 and 3 for execution of the sale deed, he was informed that necessary power of attorney of the second defendant has not been obtained and on receipt of such authorisation, Sale Deed could be executed. Subsequently the plaintiff realised that the defendants had already conveyed the property in favour of the 4th defendant as per Ext.A4 Sale Deed dated 05.07.1996. The plaintiff has filed the suit for specific performance of Ext.A1 agreement and also to set aside Ext.A4 sale deed in favour of the 4th defendant.

The defendants, including the 2nd defendant, accepted the agreement for sale. They contended that the breach of contract was committed by the plaintiff since he did not possess the balance sale consideration. It was contended that Ext.A4 Sale Deed was executed long after the expiry of the period stipulated in Ext.A1, that the sale deed is supported by valid consideration and not liable to be set aside.

The 4th defendant contended that he is a bona fide purchaser for value and without notice of the agreement and hence Ext.A4 sale deed is not liable to be set aside and decree for specific performance could not be granted.

The trial court found that the plaintiff was ready and willing to perform his part of the contract and that the breach occurred from the part of defendants 1 to 3. The trial court relied on the evidence of PWs. 1 to 3 in the said regard.

The trial court found that Ext.A4 Sale Deed is one supported by valid consideration and that the 4th defendant is a bona fide purchaser for value and without notice of Ext.A1 agreement. The trial court also noticed that, the plaintiff does not have a case that 4th defendant is not a bona fide purchaser. On the above findings, the suit was dismissed.

Heard learned counsel on both sides.

Before this Court, the appellant has filed an application as CMP 907/2001 under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint. By way of amendment the petitioner-plaintiff seeks to incorporate the reliefs of, return of the advance sale consideration paid with interest and also for compensation. The application is opposed by learned counsel for respondents 1 to 3 contending that at this belated stage such a prayer is not to be granted.

Sections 21 and 22 of the Specific Relief Act permits reliefs of the afore nature to be added at any stage of a suit for specific performance even if the same was not sought originally. The amendment could very well be sought for even at the appellate stage. Therefore, the prayer for amendment of the plaint is only to be allowed. CMP 907/2001 will accordingly stand allowed.

Once the amendment is allowed, it needs to be carried out and the defendants are to be granted opportunity to file additional written statement, and further trial needs to be conducted in respect of the additional relief sought. The suit is liable to be restored back to file in the trial court.

In the result, this appeal is allowed. While affirming the findings on the issues and reliefs in the original plaint namely, the denial of the relief for specific performance and setting aside Ext.A4 document, the suit is re-opened and restored back to file. The trial court shall permit the plaintiff to carry out the amendment as sought for in CMP 907/2001, on or before 15.07.2023. On such amendment being carried out, the Court shall take the suit to its logical conclusion in accordance with law and pass appropriate decree. Parties to appear before the trial court on 31.07.2023.

A copy of CMP 907/2001 shall be forwarded by the Registry to the trial Court to enable carrying out of the amendment.